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United Kingdom House of Lords Decisions

You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Ferguson v Welsh [1987] UKHL 14 (29 October 1987)
Cite as: [1987] 3 All ER 777, [1987] WLR 1553, [1987] UKHL 14, [1987] 1 WLR 1553, [1988] IRLR 112

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    Parliamentary Archives,

    Ferguson (A.P.) (Appellant)

    Welsh and others (Respondents)


    Die Jovis 29° Octobris 1987

    Upon Report from the Appellate Committee to whom was
    referred the cause Ferguson against Welsh and others, That the
    Committee had heard Counsel on Monday the 6th and Tuesday the
    7th days of July last, upon the Petition and Appeal of Joseph
    Ferguson, of 15 Totnes Close, Sunderland, Tyne and Wear,
    praying that the matter of the Order set forth in the Schedule
    thereto, namely an Order of Her Majesty's Court of Appeal of
    16th September 1986, might be reviewed before Her Majesty the
    Queen in Her Court of Parliament and that the said Order might
    be reversed, varied or altered or that the Petitioner might
    have such other relief in the premises as to Her Majesty the
    Queen in Her Court of Parliament might seem meet; as upon the
    case of Sedgefield District Council lodged in answer to the
    said Appeal; and due consideration had this day of what was
    offered on either side in this Cause:

    It is Ordered and Adjudged, by the Lords Spiritual and
    Temporal in the Court of Parliament of Her Majesty the Queen
    assembled, That the said Order of Her Majesty's Court of
    Appeal (Civil Division) of 16th September 1986 complained of
    in the said Appeal be, and the same is hereby, Affirmed and
    that the said Petition and Appeal be, and the same is hereby,
    dismissed this House: And it is further Ordered, That the
    Costs incurred by the said Respondents in respect of the said
    Appeal from 23rd March 1987 be paid out of the Legal Aid Fund
    pursuant to section 13 of the Legal Aid Act 1974, such Order
    to be suspended for four weeks to allow the Law Society to
    object if they wish; and That the costs incurred by the
    Appellant from 23rd March 1987 be taxed in accordance with
    Schedule 2 to the Legal Aid Act 1974.

    Cler: Parliamentor

    Judgment: 29.10.87





    Lord Keith of Kinkel
    Lord Brandon of Oakbrook
    Lord Griffiths
    Lord Oliver of Aylmerton
    Lord Goff of Chieveley


    My Lords,

    On 16 July 1976 the appellant ("Mr. Ferguson") sustained an
    accident, which left him paralysed from the waist downwards as a
    result of a broken back, while he was engaged on demolition work
    on a building at West Cornforth in the County of Durham. The
    building was on a site owned by the respondents, Sedgefield
    District Council, ("the council") who were engaged in carrying out,
    through their direct labour force, a scheme for providing sheltered
    housing for the elderly. Work was well advanced on certain parts
    of the scheme, and in order to make further progress it was
    necessary to demolish the building in question. The council issued
    invitations to tender for the demolition work to a number of
    contractors on their approved list including the third defendant
    ("Mr. Spence").

    The invitation to tender included the following condition:

    "Prior approval must be obtained from the engineer for the
    time being of the council before the employment of a sub-
    contractor upon site. Any approved sub-contractor shall
    secure public liability insurance cover to the satisfaction of
    the council before being engaged on site."

    The specification of the works to be carried out included
    the following clauses:

    ". . .

    2. All demolition works are to be carred out in
    accordance with 'THE BRITISH STANDARDS

    - 1 -

    3. Pulling down shall be carried out in such a manner as
    to cause as little inconvenience as possible to
    adjoining owners or the public and the contractor will
    be held responsible for any claims which may arise
    from the disregard of this clause. The rubbish is to
    be sprinkled with water to prevent dust arising and
    all proper screens and protection provided to the
    satisfaction of the engineer.

    . . .

    10. Possession of the site will be given to the contractor
    immediately on signing the contract and he shall
    proceed with the demolition and complete same as
    soon as possible. It is essential that the whole of
    this work be completed at the earliest possible

    . . .

    1. Every contractor (other than an individual contractor
      i.e. a person who performs personally the demolition
      operations without employing any workmen) must
      appoint a competent person experienced in demolition
      operations to supervise the work.

    2. All practicable steps are to be taken, both before and
      during demolition works, to prevent danger to persons
      employed from fire, or explosion through leakage or
      accumulation of gas or vapour or flooding. Adjoining
      parts of the building or structure being demolished
      must not be overloaded with debris. Precautions
      against premature collapse must be taken and
      supervised by competent person, with adequate
      experience in the operation specified:- (a) The actual
      demolition of a building or structure or part thereof
      unless there is no reasonably foreseeable risk of
      collapse so as to endanger persons employed, (b) The
      actual demolition of any part of a building or
      structure where there is a special risk of collapse so
      as to endanger persons employed.

    . . .

    24. The following materials arising from the demolition
    are to remain the property of the employer and are
    to be cleaned and stacked as noted where directed on
    the site or otherwise disposed of as specifically

    The remainder of the materials arising from the
    demolition is to become the property of the
    contractor and is to be carted away from the site to
    a place provided by the contractor and the contractor
    is to make due allowance in his tender for the value
    of any sound materials so acquired or residual scrap
    value arising."

    - 2 -

    Mr. Spence put in a tender for the sum of £330, which was
    accepted. On 7 July 1976 the council wrote to him confirming
    that work should begin on 12 July. On 11 July Mr. Spence made
    certain arrangements by telephone with the first and second
    defendants ("the Welsh brothers"), who regularly undertook
    demolition work. There was a conflict of evidence about the
    nature of these arrangements, which will be discussed later. On
    13 July 1976 one of the Welsh brothers met Mr. Ferguson in a
    public house and offered him a job on demolition work, starting
    next day. Mr. Ferguson accepted, and next morning the Welsh
    brothers collected him in a van and took him to the building in
    West Cornforth which was the subject of Mr. Spence's demolition
    contract with the council. One of the Welsh brothers, Mr.
    Ferguson, and another man taken on by the Welsh brothers spent
    that day and the next day removing some valuable articles from
    the building and then dismantling its interior, removing partition
    walls, pushing down ceilings and sawing through and removing
    joists, and later, having been joined by others, in taking off slates
    and dismantling the roof. Work continued on Friday, 16 July, and
    by early afternoon the building was an empty shell except for
    some joists across the top of the first floor rooms. Mr. Ferguson
    and one of the Welsh brothers were standing on a wall preparing
    to remove joists when a collapse occurred and both men fell to
    the ground, Mr. Ferguson suffering the injuries in respect of which
    he sues.

    On 6 July 1979 Mr. Ferguson issued a writ in the Queen's
    Bench Division claiming damages against the Welsh brothers, Mr.
    Spence, and the Council. The writ was served on 8 August 1980
    and defences were served by all the defendants. Trial of the
    action took place before Staughton J. at Newcastle upon Tyne
    early in May 1984. Damages, if any should be awarded, had
    previously been agreed at £150,000. Staughton J. held that the
    Welsh brothers were liable in damages to Mr. Ferguson but that
    Mr. Spence and the Council were not. He found that the system
    adopted by the Welsh brothers for demolition of the building was
    highly dangerous and in breach of various of the Construction
    (Working Places) Regulations 1966 (S.I. 1966, No. 94) and of the
    Construction (General Provisions) Regulations 1961 (S.I. 1961, No.
    1580). For these breaches they were liable to Mr. Ferguson as
    their employee. As regards the case against Mr. Spence,
    Staughton J. had to deal with a conflict of evidence between him
    and the Welsh brothers. According to the latter, it was agreed
    with Mr. Spence that they should strip any valuable materials from
    the building and level the chimneys and gables to ceiling height.
    Their reward was to be the value of the materials which they
    salved. Mr. Spence, on the other hand, gave evidence that the
    agreement was to the effect that the Welsh brothers should take
    away the rubbish when he himself had accomplished the demolition
    of the building and that they should have the benefit of any
    saleable salvaged material; that demolition could not start on 12
    July because of restrictions imposed by the water authority which
    inhibited him from using water to damp down dust; and that since
    the Welsh brothers had no other work on hand they should, in the
    meantime, start by taking away rubbish in the back yard and any
    loose materials inside the building. Staughton J. rejected the
    account given by the Welsh brothers and accepted that of Mr.
    Spence, who he said in general impressed him as an honest and
    truthful witness, whereas he could not regard the evidence of the

    - 3 -

    Welsh brothers as reliable. In that state of affairs he found that
    Mr. Spence was not carrying out any demolition work himself, nor
    was he doing so vicariously through the Welsh brothers, whom he
    had not engaged or authorised to demolish the building. He
    therefore held that Mr. Spence was not liable for breach of any of
    the Regulations of 1961 because he was not performing any
    operation to which these regulations applied. Staughton J. went on
    to consider a case levelled against Mr. Spence on the ground that
    he owed to Mr. Ferguson the common duty of care under the
    Occupiers' Liability Act 1957. He held that Mr. Spence was an
    occupier of the premises, but found that the purposes for which
    Mr. Ferguson had, through the Welsh brothers, been invited to be
    there did not include the demolition of the building, in particular
    the removal of joists at roof level. He expressed his finding in
    the alternative fashion that, whereas Mr. Ferguson was a lawful
    visitor to the premises on Wednesday, 14 July for the purpose of
    removing rubbish, he was not a lawful visitor on Friday, 16 July
    for the purpose of demolition.

    As to the case against the council, Staughton J. found that
    the council were not a contractor in relation to the building nor
    were they an employer of workmen, and accordingly held that Mr.
    Ferguson had no valid claim against them under the Regulations of
    1966 nor under those of 1961. He held that although the Council
    were an occupier of the premises along with Mr. Spence, the claim
    against them under the Act of 1957 failed because they had issued
    no invitation to Mr. Ferguson to be on the premises and had not
    delegated to Mr. Spence the right to invite him. If Mr. Ferguson
    was not a lawful visitor of Mr. Spence, he was not a lawful visitor
    of the council.

    Mr. Ferguson appealed to the Court of Appeal. Before the
    appeal came on for hearing he discovered a number of things
    which he considered would have had an important influence on the
    result of the action if they had been in evidence at the trial. In
    the first place, he obtained affidavits from four persons to the
    effect that on various occasions before Mr. Ferguson's accident
    they had acted as or worked for sub-contractors to Mr. Spence for
    demolition work, the work being carried out according to the same
    dangerous system as that adopted in the present case. The precise
    locations of the work carried out were not stated in the affidavits,
    but in one case at least it seemed likely that Mr. Spence's
    demolition contract must have been with the council or their
    predecessors, Spennymoor Urban District Council. In the second
    place, he obtained information from the Northumbrian Water
    Authority that at the time of the accident there were no
    restrictions at all on the use of water for industrial purposes such
    as damping down dust in the course of demolition work. In the
    third place, Mr. Spence was on 29 January 1985 convicted of
    conspiracy to steal at Teeside Crown Court and sentenced to four
    months imprisonment, the evidence indicating that his dishonest
    activities had been carried on over a period which spanned the
    dates of the trial before Staughton J. The first of these matters
    was important because at the trial Mr. Spence had given evidence
    that he had never sub-contracted any demolition work for which he
    had contracted with the council. The second was important
    because of Mr. Spence's evidence that he could not begin the
    demolition work on 12 July because of the shortage of water for
    damping down. The third tended to cast doubt upon Mr. Spence's
    general honesty and credibility.

    - 4 -

    Before the Court of Appeal Mr. Ferguson conducted his own
    case. He sought leave to adduce further evidence about the three
    matters mentioned above, with a view to a new trial being ordered
    against both Mr. Spence and the council. On 16 September 1986
    the Court of Appeal (Lawton, Slade and Mustill LL.J.) gave
    judgment allowing a new trial as against Mr. Spence but not as
    against the council. The leading judgment was given by Lawton
    L.J. He expressed doubts as to whether the evidence about Mr.
    Spence's conviction should be admitted, but found it unnecessary to
    decide that because in his view the evidence about water shortage
    and about Mr. Spence's practice of employing sub-contractors
    appeared credible and likely to have an important effect on the
    result of the action against Mr. Spence and could not with
    reasonable diligence have been obtained for use at the original
    trial: Ladd v. Marshall [1954] 1 WLR 1489. Its importance
    was, of course, that it tended to indicate that Mr. Spence's
    evidence about the terms of his arrangement with the Welsh
    brothers was untrue and the evidence of the latter was true. In
    that situation Mr. Spence would be liable to Mr. Ferguson for
    breaches of the Regulations of 1961. As regards the position of
    the Council, Lawton L.J. expressed the opinion that, contrary to
    the submission by their counsel, Staughton J. was right to hold
    that they were occupiers of the building along with Mr. Spence.
    In his view, however, Mr. Ferguson could not be said to have been
    a lawful visitor of the council on the premises within the meaning
    of the Act of 1957. They did not want him there and he was
    there against their wishes. Accordingly, even on the new
    evidence, Mr. Ferguson would have no prospect of establishing a
    case against them under the Act of 1957.

    Mr. Ferguson now appeals to your Lordships' House, with
    leave given here, against that part of the order of the Court of
    Appeal which refused a new trial as against the council. The
    importance to him of success is manifest. The Welsh brothers are
    men of straw, and the prospects of Mr. Spence (who had no
    relevant insurance at the time of the accident) being able to
    satisfy an award of damages against him to the tune of £150,000
    are probably remote.

    The principal argument for Mr. Ferguson was related to the
    application of the Occupiers' Liability Act 1957. It was accepted
    on behalf of the council that, for the purposes of the Act, they
    were occupiers of the building along with Mr. Spence. Section 1(1)
    of the Act of 1957 provides:

    "The rules enacted by the two next following sections shall
    have effect, in place of the rules of the common law, to
    regulate the duty which an occupier of premises owes to his
    visitors in respect of dangers due to the state of the
    premises or to things done or omitted to be done on them."

    Subsection (2) provides, inter alia, that for the purposes of the
    rules so enacted the persons who are to be treated as an
    occupier's visitors are the same (subject to an immaterial
    exception) as the persons who would at common law be his
    invitees or licensees. So the first matter for consideration is
    whether in relation to the council Mr. Ferguson was their visitor.
    It is to be considered in the light of the prospect that at a new

    - 5 -

    trial it would be established that Mr. Spence sub-contracted the
    demolition to the Welsh Brothers, so that he invited the latter to
    come onto the premises with persons employed by them such as
    Mr. Ferguson, so as to make Mr. Ferguson his visitor. The
    contract between the council and Mr. Spence prohibited sub-
    contracting without the consent of the council. No consent for
    the sub-contract for the Welsh brothers was asked for or given,
    and counsel for Mr. Ferguson did not suggest that the council
    knew that Mr. Spence had unlawfully sub-contracted. It was
    maintained, however, that by putting Mr. Spence into occupation of
    the building for purposes of demolition the council had clothed him
    with apparent or ostensible authority to invite other persons onto
    the premises, including sub-contractors and their employees. Such
    persons would know nothing of the limitation on Mr. Spence's
    actual authority, and were not reasonably to be treated as
    trespassers in a question with the council. In my opinion, there is
    evidence capable of establishing that Mr. Spence had ostensible
    authority from the council to invite the Welsh brothers and their
    employers onto the site. Mr. Spence was placed in control of the
    site for demolition purposes, and to one who had no knowledge of
    the council's policy of prohibiting sub-contracts this would indicate
    that he was entitled to invite whomsoever he pleased onto the site
    for the purpose of carrying out demolition.

    The next question is whether the council were in breach of
    the common duty of care owed to visitors under the Act of 1957,
    which is thus expressed in section 2(2):

    "The common duty of care is a duty to take such care as in
    all the circumstances of the case is reasonable to see that
    the visitor will be reasonably safe in using the premises for
    the purposes for which he is invited or permitted by the
    occupier to be there."

    The safety referred to is safety not only from dangers due
    to the state of the premises but also known dangers due to things
    done or omitted to be done on them.

    A problem at once arises as to the purposes for which the council
    is to be taken as having invited Mr. Ferguson to be on the
    premises, and as to whether in taking part in the demolition of
    the building he was using the premises for these purposes. I
    consider that the council, having put Mr. Spence into occupation of
    the premises and thus put him into a position to invite the Welsh
    brothers and their employees onto them for the purpose of
    demolishing the building, must be taken to have invited Mr.
    Ferguson in for that purpose. It is more difficult to hold that Mr.
    Ferguson was, within the meaning of the subsection, using the
    premises for the purpose of demolishing the building, but, assuming
    that he was, the question remains whether the absence of
    reasonable safety which resulted in the accident arose out of his
    use of the premises. The absence of safety arose directly out of
    the system of work adopted by the Welsh brothers, and the nature
    of the instructions given by them to Mr. Ferguson as to how he
    should go about performing his work for them. It would be going
    a very long way to hold that an occupier of premises is liable to
    the employee of an independent contractor engaged to do work on
    the premises in respect of dangers arising not from the physical
    state of the premises but from an unsafe system of work adopted

    - 6 -

    by the contractor. In this connection, however, it is necessary to
    consider section 2(4)(b) of the Act, which provides:

    "Where damage is caused to a visitor by a danger due to
    the faulty execution of any work of construction,
    maintenance or repair by an independent contractor
    employed by the occupier, the occupier is not to be treated
    without more as answerable for the danger if in all the
    circumstances he had acted reasonably in entrusting the
    work to an independent contractor and had taken such steps
    (if any) as he reasonably ought in order to satisfy himself
    that the contractor was competent and that the work had
    been properly done."

    The enactment is designed to afford some protection from liability
    to an occupier who has engaged an independent contractor who has
    executed the work in a faulty manner. It is to be observed that
    it does not specifically refer to demolition, but a broad and
    purposive interpretation may properly lead to the conclusion that
    demolition is embraced by the word "construction." Further the
    pluperfect tense employed in the last words of the paragraph "the
    work had been properly done" might suggest that there is in
    contemplation only the situation where the work has been
    completed, but has been done in such a way that there exists a
    danger related to the state of the premises. That would, however,
    in my opinion, be an unduly strict construction, and there is no
    good reason for narrowing the protection afforded so as not to
    cover liability from dangers created by a negligent act or omission
    by the contractor in the course of his work on the premises. It
    cannot have been intended not to cover, for example, dangers to
    visitors from falling masonry or other objects brought about by the
    negligence of the contractor. It may therefore be inferred that an
    occupier might, in certain circumstances, be liable for something
    done or omitted to be done on his premises by an independent
    contractor if he did not take reasonable steps to satisfy himself
    that the contractor was competent and that the work was being
    properly done.

    It would not ordinarily be reasonable to expect an occupier
    of premises having engaged a contractor whom he has reasonable
    grounds for regarding as competent, to supervise the contractor's
    activities in order to ensure that he was discharging his duty to
    his employees to observe a safe system of work. In special
    circumstances, on the other hand, where the occupier knows or has
    reason to suspect that the contractor is using an unsafe system of
    work, it might well be reasonable for the occupier to take steps
    to see that the system was made safe.

    The crux of the present case therefore, is whether the
    council knew or had reason to suspect that Mr. Spence, in
    contravention of the terms of his contract, was bringing in cowboy
    operators who would proceed to demolish the building in a
    thoroughly unsafe way. The thrust of the affidavit evidence
    admitted by the Court of Appeal was that Mr. Spence had long
    been in the habit of sub-contracting his demolition work to persons
    who proceeded to execute it by the unsafe method of working
    from the bottom up. If the evidence went the length of indicating
    that the council knew or ought to have known that this was Mr.
    Spence's usual practice, there would be much to be said for the

    - 7 -

    view that they should be liable to Mr. Ferguson. No responsible
    council should countenance the unsafe working methods of cowboy
    operators. It should be clearly foreseeable that such methods
    exposed the employees of such operators to very serious dangers.
    It is entirely reasonable that a council occupying premises where
    demolition work is to be executed should take steps to see that
    the work is carried out by reputable and careful contractors.
    Here, however, the council did contract with Mr. Spence subject to
    the condition that sub-contracting without their consent was
    prohibited. The fresh evidence sought to be adduced by Mr.
    Ferguson does not go the length of supporting any inference that
    the council or their responsible officers knew or ought to have
    known that Mr. Spence was likely to contravene this prohibition.
    The evidence related largely to the late sixties and early
    seventies, before the respondent council came into existence. It is
    common knowledge that the local authorities which came into
    existence as a result of the reorganisation of 1974 did not by any
    means correspond precisely to those which existed previously, and
    also that there were far-reaching transfers of personnel and
    considerable confusion. While some of Mr. Spence's earlier
    demolition activities may have been carried out for Spennymoor
    Urban District Council, it does not follow that the present
    respondents had any reason to suspect his competence or honesty
    at the material time. I conclude that the evidence in question
    would not be likely to have an important effect on the result of
    the action so far as directed against the council.

    Counsel for Mr. Ferguson relied also on certain documents
    which after the hearing before the Court of Appeal became
    available from the office of the council's architects. At the trial
    there was evidence that on the second day of the demolition
    activity two persons, who it was suggested were officials of the
    council, appeared on the site and complained about the raising of
    dust which was damaging new paintwork in adjoining houses under
    construction. This evidence was sought to be used for the purpose
    of establishing knowledge on the part of the council of the manner
    in which the building was being demolished. The documents in
    question consisted of two works progress reports by a clerk of
    works employed by the architects, one of which made reference to
    nuisance from dust caused by the demolition, and a letter from
    the architects to the council, dated 23 July 1976, complaining
    about the same matter. The documents tend to identify the clerk
    of works and one of the architects as being the persons who
    visited the site and complained about dust, but do not otherwise
    carry matters further. The architects were independent
    contractors and there is no evidence that they or anyone in their
    employment informed the council, before the accident, about
    anything which they observed in the course of the site visit.

    In my opinion, Mr. Ferguson has not demonstrated sufficient
    grounds for reopening the case against the council so far as based
    on the Act of 1957. His alternative case, based on the ordinary
    common law duty of care does not raise any considerations of a
    different nature to those applicable to the statutory case.

    It was argued for the council that the fresh evidence about
    Mr. Spence's earlier demolition activities could with reasonable
    diligence have been discovered before the trial, and should have
    been because it was directly relevant to Mr. Ferguson's pleaded

    - 8 -

    case that the council negligently employed an incompetent
    contractor, a case which was dropped at the conclusion of the
    trial. Accordingly, the evidence should on that ground not be
    admitted as against the council. I consider that there is much
    force in that submission, but the Court of Appeal having in the
    exercise of their discretion decided to admit the evidence as
    against Mr. Spence, on the basis that there had been no lack of
    due diligence in discovering it, I would not be disposed to take a
    different view in relation to the case against the council.

    My Lords, for these reasons I would dimiss the appeal.


    My Lords,

    I have had the advantage of reading in draft the speech
    prepared by my noble and learned friend, Lord Keith of Kinkel. I
    agree with it, and for the reasons which he gives I would dismiss
    the appeal.


    My Lords,

    I have had the advantage of reading in draft the speech
    prepared by my noble and learned friend, Lord Keith of Kinkel. I
    agree that the appeal should be dismissed for the reasons which he
    has given.


    My Lords,

    I have had the advantage of reading in draft the speech
    prepared by my noble and learned friend, Lord Keith of Kinkel. It
    is possible to envisage circumstances in which an occupier of
    property engaging the services of an independent contractor to
    carry out work on his premises may, as a result of his state of
    knowledge and opportunities of supervision, render himself liable to
    an employee of the contractor who is injured as a result of the
    defective system of work adopted by the employer. But I incline
    to think that his liability in such case would be rather that of
    joint tortfeasor than of an occupier. Whether or not that is so,
    however, the additional evidence in the instant case is quite
    insufficient to lead to the conclusion that such a claim against the
    respondent council could be supported. I agree, therefore, that the
    appeal should be dismissed for the reasons which my noble and
    learned friend has given.

    - 9 -


    My Lords,

    The question on this appeal is whether, in the light of the
    fresh evidence now available which persuaded the Court of Appeal
    to order a new trial as against Mr. Spence, a new trial should
    likewise be ordered as against the respondent council. The
    principal submission advanced on behalf of Mr. Ferguson was that
    such a new trial should be ordered, on the basis that the council
    might be held liable under the Occupiers' Liability Act 1957. Like
    my noble and learned friend, Lord Keith of Kinkel, I am unable to
    accept this submission, though I have reached that conclusion by a
    rather different route.

    I, for myself, can see no difficulty in law in reaching a
    conclusion that Mr. Ferguson may have been a lawful visitor in
    relation to Mr. Spence but a trespasser in relation to the council.
    Once it is accepted that two persons may be in occupation of the
    same land, it seems to me inevitable that on certain facts such a
    conclusion may have to be reached. If it be the case that one
    only of such occupiers authorises a third person to come onto the
    land, then plainly the third person is, vis-à-vis that occupier, a
    lawful visitor. But he may not be a lawful visitor vis-à-vis the
    other occupier. Whether he is so or not must, in my opinion,
    depend upon the question whether the occupier who authorised him
    to enter had authority, actual (express or implied) or ostensible,
    from the other occupier to allow the third party onto the land. If
    he had, then the third party will be, vis-à-vis that other occupier,
    a lawful visitor; if he had not, then the third party will be, vis-à-
    vis that other occupier, a trespasser. No doubt, in the ordinary
    circumstances of life, the occupier who allows the third party to
    come onto the land will frequently have implied or ostensible
    authority so to do on behalf of the other occupier - as will, I
    think, usually be the case when the first occupier is a builder, in
    occupation of a building site with the authority of the building
    owner, who authorises a servant or independent contractor to come
    onto the site. But this may not always be so, as for example
    where the third party is aware that the building owner has
    expressly forbidden the builder to allow him on the site. These
    problems have, as I see it, to be solved by the application of the
    ordinary principles of agency law.

    I am content to assume, for the purposes of the present
    appeal, that there is evidence capable of establishing that Mr.
    Spence did have the ostensible authority of the council to allow
    the Welsh brothers (and, through them, Mr. Ferguson) onto the
    land. Even so, in my judgment Mr. Ferguson's action against the
    council must fail because I cannot see how the council could be
    held liable to him, in particular under the Occupiers' Liability Act.

    On the assumption that Mr. Ferguson was the lawful visitor
    of the council on the land, the council owed to him the common
    duty of care, i.e. a duty "to take such care as in all the
    circumstances of the case is reasonable to see that the visitor will
    be reasonably safe in using the premises for the purposes for
    which he is invited or permitted by the occupier to be there" see

    - 10 -

    section 2(2) of the Act. I have emphasised the words "in using
    the premises" because it seems to me that the key to the problem
    in the present case lies in those words. I can see no basis, even
    on the evidence now available, for holding that Mr. Ferguson's
    injury arose from any breach by the council of that duty. There
    can, no doubt, be cases in which an independent contractor does
    work on premises which result in such premises becoming unsafe
    for a lawful visitor coming upon them, as when a brick falls from
    a building under repair onto the head of a postman delivering the
    mail. In such circumstances the occupier may be held liable to
    the postman, though in considering whether he is in breach of the
    common duty of care there would have to be considered (inter
    alia) the circumstances specified in section 2(4)(b) of the Act. But
    if I ask myself, in relation to the facts of the present case,
    whether it can be said that Mr. Ferguson's injury arose from a
    failure by the council to take reasonable care to see that persons
    in his position would be reasonably safe in using the premises for
    the relevant purposes, the answer must, I think, be no. There is
    no question as, I see it, of Mr. Ferguson's injury arising from any
    such failure; for it arose not from his use of the premises but
    from the manner in which he carried out his work on the
    premises. For this simple reason, I do not consider that the
    Occupiers' Liability Act has anything to do with the present case.

    I wish to add that I do not, with all respect, subscribe to
    the opinion that the mere fact that an occupier may know or have
    reason to suspect that the contractor carrying out work on his
    building may be using an unsafe system of work can of itself be
    enough to impose upon him a liability under the Occupiers'
    Liability Act, or indeed in negligence at common law, to an
    employee of the contractor who is thereby injured, even if the
    effect of using that unsafe system is to render the premises
    unsafe and thereby to cause the injury to the employee. I have
    only to think of the ordinary householder who calls in an
    electrician; and the electrician sends in a man who, using an
    unsafe system established by his employer, creates a danger in the
    premises which results in his suffering injury from burns. I cannot
    see that, in ordinary circumstances, the householder should be held
    liable under the Occupiers' Liability Act, or even in negligence,
    for failing to tell the man how he should be doing his work. I
    recognise that there may be special circumstances which may
    render another person liable to the injured man together with his
    employer, as when they are, for some reason, joint tortfeasors; but
    such a situation appears to me to be quite different.

    On the evidence in the present case, I can see no special
    circumstances by reason of which the council, as occupier, might
    be held liable to Mr. Ferguson under the Act. Nor can I see any
    other basis upon which the council might be held liable to him. In
    these circumstances, though I feel great sympathy for Mr.
    Ferguson, I agree that his appeal must be dismissed.

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